Higdon v. Chastaine, 60 N.C. 212, 1 Win. 212 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 212, 1 Win. 212

W. W. HIGDON and others vs. E. C. CHASTAINE.

If the general issue be pleaded together with special pleas and tlijurev fin'd all the issues in favor of the defendant, the Supreme Court can not reverse the judgment for error in the charge of the Judge respect ii,g the matter of the special pleas.

It can not be assigned for error time the Judge did not charge the jury on anoint which the party did not make at the. trial.

The cases of Morisey vs. Bunting, 1 l>t«v. Rep. 3. Ma.-iin vs,. Waugh h Dev, and Bat. Rep. 517. Cole vs. Cole 1 Jivd. Hop. 4H0. cited and improved.

Tbis was an action. oí debt tried before Shipp, d., at Ea.Il Term of Macon Superior Conn, ISPS.

The declaration wap for §500 claimed by the plaintiff to be due to bi)n try virtue of n deed executed Ivy the de&nd-anÍB, the contenta .of which, it is unnecessary to state, as it* construction is not brought into ¡¡¡uestion. The defendants pleaded the get¡end it sue, conditions performed and £.«'» breach. The plain ¡iff; assigned two broaches, 1st that the defendant had discovered a valuable copper mint., and -sold it before the ¿5th December, 1 Dim 2d. That he was satisfied that it was proved to be a valuable", copper mine : in either of which eases they insisted that the defendant was bound io pay the sum ot $-500.

The subscribing witness was introduced and prove-d the execution of the instrument declared on. Mr. Cannon was introduced as a- witness by the plaintiffs, who testified that No went with plaintiff Higdon to the defendant Oaas tair.e, before the bringing of this suit, and demanded the #500 or a surrender of plaintiff’s lease, offering to settle an.d. pay the defendants expenses. The defendant refused to pay the #500, but said he waM pay it'if he eo-aM soil the mine for $10,U00, and that he could not surrendei the lease, because there was some sort of contract upon the mi ne. This evidence was objected to by the defendant, but admitted by the Comt. The defendant’s counsel moved to non-suit the plaintiffs, which motion was overruled. The cause was submitted to the jury upon this testimony ■; and the counsel for the'plaintiffs insisted that the testimony proved a breach of one nr the other óf the conditions mentioned in the agreement, and pressed his right to recover, upon this ground alone. The ‘Court charged the jury that if the testimony of the witness Cannon, satisfied them, that the defendant had committed cither of the breaches of the agreement assigned by the .plaintiffs, viz: if the proof satisfied their minds that the defendant had discovered a valuable copper mine, and sold it as. such : or that- he was satisfied thatit was proved tp he a val liable mine as contemplated in the agreement — the plaiutiff 'was entitled to their verdict for ,$500 and interest; and if they • were not satisfied of these facts, the defendant was entitled to their vérdict. There was no exception to the charge. There was a Verdict in general terms for the defendant.” Rule for o new Inal.— Rule discharged, and the plain tiffs appealed to the ¡Supreme Court..

Mcn'iriuu. for the plaintiffs.

bo counsel tor the defendant in this ( bare

l)virus J.

This was an action of ’.-fot in which the plaintiff-' declared upon a sealed instrument, and assigned breaches of the conditions annexed to it. The-defendant pleaded the general issue and conditions performed and not broken. Upon the trial, the jury found a verdict for the defendant; and it is stated in the case that there was no exception taken to the charge of the court to the jury. Yet there was a motion for a hew trial, which being reftr-ed. and a judgment rendered for the defendant, the plaintiff appealed.

We cannot discover any error which we are at liberty to redress. The plea of the general issue made it necessary for the plaintiffs to prove the execution of the instrument, declared on, and they introduced and examined the subscribing witness, who testified that it was duly executed : and they also offered evidence for the purpose of proving the breaches assigned* It does-not appear that any testimony was introduced on the part of the defendant. The court charged the jury upon the bearings oí the evidence, and no objection was made to the charge. .The jury returned a verdict generally “ for the defendant,” which of . course negatives the execution of the instrument upon which the suit was brought; - Upon this state of the record it is out of our power to notice any improper instructions upon the evidence given in relation to the breaches, even if there were any such ; for if the execution of the instrument were not established, what was said about its breaches must have been irrelevant.

It has been repeatedly decided in this. Court that in an action of. assumpsit, if jfche defendant plead the. general issue and the statute of limitations, and the jury find “all the issues for the defendant/’ the Court ean not inquire into the correctness of the charge, in relation to the issue on the latter plea. Morisey vs. Bunting 1 Dev. Rep. 3. Mastin Ex., vs. Waugh, 2 Dev. and Bat. Rep. 517. Cole vs. Cole, 1 Ired. Rep. 460. The present appears a parallel case and ■ must receive the same determination.

But'it is said in'the argument here, that -the plaintiff’s were hot hound to assign breaches of the bond, and. to offer proof in support of them, arjd that upon the testimony offered by them to establish the execution of the instrument sued on, the Court ought to have told the jury, that if they believed that testimony, the plaintiffs were entitled to re-cover. The reply is, that the Court was not bound, to instruct the counsel for the plaintiffs in the management of théir caso : and it was not error of which they have a right > to complain, that he did not charge the jury upon a point which they did not think' proper to take. ' They made no objections to his instructions upon the questions which they presented, and after a verdict generally in favor of the de?-fendant, they are estopped from making exceptions .founded on their own mismanagement.

The judgment must be affirmed.